Saturday, January 23, 2021

Getting vaccinations for Covid-19 in Somerset County, New Jersey

The Courier-News had the following article on page 2A of the newspaper of January 23, 2021:

Sounds good, right?

BUT, if e person eligible for vaccination goes to the covid vaccine map on January 23, 2021, and enters a starting point near the Bridgewater, NJ municipal building and a radius of 25 miles (covering all the locations mentioned in the Courier News article), one gets: Covid-19 vaccinations will be made available in phases to ensure those populations most at risk are prioritized. Based upon your current status, you are currently eligible to schedule your appointment for vaccination. Please select a COVID-19 Vaccine clinic location by clicking on the name from the list below.

BUT, one gets NO LIST, but rather the message:

No COVID-19 vaccine clinics were found within those search options. Please change your search options and try again. Note: New clinics are added throughout the week, so please check again if you do not find a location today.

At the ShopRite site, one finds:

Due to overwhelming demand, our COVID-19 Vaccine appointment schedule is FULL — there are currently no new appointments available. Please check back at a later date. We are working hard to secure additional vaccine and open appointment availability. We are sorry for the inconvenience and appreciate your patience.

Tuesday, January 19, 2021

Judge Newman makes procedural points in analyzing Hytera, an appeal of IPR2018- 00176. _

Some procedural points from the case:

In its Reply filed in the PTAB, Hytera elaborated its argument concerning Stubbs, stating that Stubbs discloses the use of incompatible protocols as “exemplified by the encapsulation/decapsulation conversions in the GGSN and SGSN.” Reply at 18. Hytera’s Reply cited additional quotations from the Stubbs reference, that “flowed directly from its contention [in the Petition] that converters evidence incompatible protocols.” Hytera Br. 51. The Board declined to consider this information, calling it “new argument advanced in the Reply” without any reason “why this argument could not have been made in the Petition.” Board Op. at *11–12. It was error for the Board to refuse to consider information filed in Reply, although it was relevant to Motorola’s Response, for the Board is intended and expected fully to explore the issues, to justify the estoppel that Congress included in the America Invents Act. In the interest of expediency, we have reviewed the information that the Board refused to consider. We conclude that this information does not change the result. The question of “waiver” Hytera argues that the Board adopted an argument that had been waived by Motorola: the argument that the inter-ward interface of Grube “refers merely to a connection between ward controllers” and thus does not function as a group controller. Hytera Br. 53–54.

Hytera acknowledges that this argument was presented by Motorola in its preliminary response, but Hytera states that Motorola did not develop the argument, and therefore that it could not be relied on by the Board. We do not discern error or inequity on the facts hereof, for the issue was initially mentioned by Motorola, and the record does not show that as to this aspect Hytera was foreclosed from stating its position.

HAAG-STREIT AG loses appeal at CAFC in case involving state of blue LED art

The matter of the blue LED arises in the case:

Second, the Board found that Dr. Jiao’s testimony did not support the position that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. In particular, the Board found that none of Dr. Jiao’s testimony “actually addresses the state of the art of blue LEDs in 1992, which, as acknowledged by [Haag-Streit], is the relevant point in time to assess the alleged implicit disclosures in Longobardi.” Board Decision, 2019 Pat. App. LEXIS 13545, at *33. The Board explained that, although Dr. Jiao’s original declaration filed with the IPR petition stated that “one of ordinary skill in the art ‘would understand Longobardi’s teaching of using fluorescein for imaging purposes [to] necessarily mean[] that the instrument emits blue light’” he failed to “adequately support the view that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED.” Id. at *33. Indeed, the Board noted that Dr. Jiao’s testimony on this issue “makes no reference to a blue LED.” Id. On appeal, Haag-Streit argues that the Board’s finding that “none of Dr. Jiao’s testimony supports the contention that Longobardi implicitly discloses a blue LED” is inconsistent with findings the Board made in its Institution Decision. Appellant’s Br. 34. But it is well established that “the Board is not bound by any findings made in its Institution Decision.” TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed. Cir. 2016) (explaining that, at the institution phase, “the Board is considering the matter preliminarily without the benefit of a full record”). In any event, we disagree with Haag-Streit’s assertion that the Board’s findings in the Institution Decision are inconsistent with those in its final written decision. In the Institution Decision, the Board never said that Dr. Jiao’s testimony supports the position that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. Instead, the Board acknowledged that “Petitioner (via Dr. Jiao) [took] the position that one of ordinary skill in the art would view Longobardi as at least implicitly teaching or suggesting the use of a blue LED to generate blue light energy,” while “Patent Owner (via Dr. Lebby) [took] the position that blue LEDs did not exist at the time for medical use and that one of ordinary skill in the art would not have used a blue LED for medical use.” Haag-Streit AG v. Eidolon Optical, LLC, No. IPR2018-01311, 2019 WL 171684, at *10 (P.T.A.B. Jan. 11, 2019). The Board found that this conflicting testimony created a genuine issue of material fact which, at that stage in the proceedings, had to be viewed in the light most favorable to Haag-Streit. Id. In its final written decision, the Board carefully considered Dr. Jiao’s declarations, but agreed with Eidolon’s evidence and argument in finding that his testimony failed to demonstrate that one of ordinary skill in the art would have understood Longobardi to implicitly disclose the presence of a blue LED. Board Decision, 2019 Pat. App. LEXIS 13545, at *31–33. “[I]t is not for us to second-guess the Board’s assessment of the evidence.” Velander v. Garner, 348 F.3d 1359, 1378–79 (Fed. Cir. 2003) (“Our task is to determine whether substantial evidence supports the conclusion chosen by the Board.”). Finally, the Board found that Haag-Streit did not carry its burden to establish that “a blue LED with sufficient power output to cause sodium fluorescein to fluoresce existed as of February 5, 1992.” Board Decision, 2019 Pat. App. LEXIS 13545, at *34. On this point, Eidolon presented expert testimony that, “[a]t the time of Longobardi, 1992, an LED capable of generating blue light energy suitable for diagnostic medical applications such as retinal angiography simply did not exist.” Id. at *34–35. The Board found that this evidence shifted the burden of production to Haag-Streit to establish that blue LEDs sufficient to excite sodium fluorescein existed as of February 5, 1992. Id. at *35–36. Haag-Streit’s expert, Dr. Jiao, admitted that he did not know the specific amount of power output needed for an LED to cause sodium fluorescein to fluoresce

Sunday, January 17, 2021

iLife Technologies loses appeal at CAFC on 101 issue

The outcome:

iLife Technologies, Inc., appeals a Northern District of Texas order holding that claim 1 of U.S. Patent No. 6,864,796 is directed to patent ineligible subject matter under 35 U.S.C. § 101. We affirm

Of note:

While we agree with the district court that these claims are directed to the abstract idea of gathering, processing and transmitting data, the district court erred to the extent that it incorporated conventionality of claim elements at step 1. See, e.g., J.A. 26 (“Nothing in claim 1, understood in light of the specification, requires anything other than conventional sensors and processors performing ‘conventional activit[ies] previously known to the industry.’” (quoting Alice, 573 U.S. at 225 (quoting Mayo, 566 U.S. at 73))). The conventionality of the claim elements is only considered at step two if the claims are deemed at step 1 to be directed to a patent ineligible concept, such as an abstract idea. Alice, 573 U.S. at 217, 225. A claim is not directed to an abstract idea simply because it uses conventional technology. This claim is, however, directed to an abstract idea because it contains nothing more than the idea of gathering processing and transmitting
As the district court held, the elements of claim 1, considered individually and as an ordered combination, fail to recite an inventive concept. J.A. 28. Aside from the abstract idea, the claim recites only generic computer components, including a sensor, a processor, and a communication device. The specification’s description of these elements confirms they are generic. See, e.g., ’796 patent at 2:46–50 (communication device includes “cellular phones, . . . laptops, computers, . . . and other similar types of communications equipment”); 2:64–67 (sensor broadly means “a device that senses one or more absolute values, changes in value . . . of at least the sensed accelerative phenomena”); 4:34–38 (processor means “any device, system, or part thereof that controls at least one operation”). iLife argues that configuring an acceleration-based sensor and processor to detect and distinguish body movement as a function of both dynamic and static acceleration is an inventive concept. Appellant’s Br. at 53–54. But the specification clarifies sensors (e.g., accelerometers) “that measure both static and dynamic acceleration [were] known.” ’796 patent at 2:1–2. And unlike the claims in Thales, claim 1 does not recite any unconventional means or method for configuring or processing that information to distinguish body movement based on dynamic and static acceleration.
Therefore, we conclude that claim 1’s mere call for sensing and processing static and dynamic acceleration information using generic components does not transform the nature of claim 1 into patent eligible subject matter. See Elec. Power, 830 F.3d at 1355; see also BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290–91 (Fed. Cir. 2018)
(“If a claim’s only ‘inventive concept’ is the application of an abstract idea using conventional and well-understood techniques, the claim has not been transformed into a patent-eligible application of an abstract idea.”). Accordingly, we hold claim 1 is directed to patent-ineligible subject matter.

Friday, January 15, 2021

Burger King logo: meet the new boss, same as the old boss?

BurgerKing is changing its logo/favicon:

Dezeen describes the switch:

Burger King's first rebrand in 20 years focuses on the American fast-food restaurant's food and its past says its designer Lisa Smith, executive creative director at Jones Knowles Ritchie. The comprehensive redesign of Burger King's visual identity by Jones Knowles Ritchie included the creation of a retro logo that closely resembles the logo used by the brand in the 1970s, 80s and 90s. "We explored a lot of different design territories, but kept coming back to the brand's original iconic logo from 1969 and 1994 when Burger King looked at its best," Smith told Dezeen.

And, yes, the "new" logo of 2021 does CLOSELY RESEMBLE the "old" logo of the 60's etc, which was

Separately, a new slogan might be "have it your way, as long as you pay, but you won't have any say." My local BK was going to charge me $0.47 for substituing barbecue instead of the normal stuff on a whopper. When I pointed out this was a substitution, the guy repeated 47 cents please. I wanted to comment. Below shows what happened.

Tuesday, January 12, 2021

Applicant Sturgeon loses 101 case on floral arrangements

The review:

We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), including patent eligibility under § 101, Berkheimer v. HP Inc., 881 F.3d 1360, 1365 (Fed. Cir. 2018). We review underlying factual findings for substantial evidence. Elsner, 381 F.3d at 1127 (citing In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000)). I The question of eligibility under § 101 is governed by the two-step framework set out by the Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012).

Sturgeon concedes that merely creating a floral arrangement using a computer is an abstract idea, but at step 1, she argues that the claim is not abstract because it adds an element of realism to the floral arrangement. The Board properly found that the claim is directed to “mental processes,” “the abstract idea of managing personal behavior,” and “methods of organizing human activity”—in this case, arranging flowers—and is thus abstract at step 1. See J.A. 7–8. As we have explained, methods which can be performed entirely in the human mind are unpatentable . . . because computational methods which can be performed entirely in the human mind are the types of methods that embody the “basic tools of scientific and technological work” that are free to all men and reserved exclusively to none. Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1378 (Fed. Cir. 2016) (quoting CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011)). The Board correctly determined that claim 2 is directed to an abstract idea. At step 2, Sturgeon argues that claim 2 involves an inventive concept by specifying that an image of the flower at an appropriate angle must be selected from an image library based on the location the user has selected for placing the flower. The Director responds that the ’028 application lacks an inventive concept because it does not describe any specific steps that the computer takes to select an appropriate image from an image library and does not disclose an improvement in computer technology. We agree with the Director and the Board that claim 2 is not directed to an inventive concept as required under the second step of Alice. Claim 2 recites a method of “selecting a flower from an image library,” “placing the flower at a user-selected location,” “dynamically selecting” an image from the library based on the chosen location, and “displaying the selected flower . . . on the display screen.” ’028 application (emphases added). As the Board properly found, these steps do not differentiate the claim from ordinary mental processes and conventional computer activity. All of these elements are described at a high level of generality and require only generic computer implementation. There is no inventive concept here that meaningfully adds to the existing practice of simulating a floral arrangement by creating a digital collage—

MORTGAGE APPLICATION TECH. v. MERIDIANLINK, INC: Loss on 101 but no attorney's fees awarded

The outcome:

Mortgage Application Technologies, LLC (“MAT”) appeals the final decision of the U.S. District Court for the Central District of California finding that the asserted claims of U.S. Patent No. 8,548,902 (“’902 patent”) are invalid under 35 U.S.C. § 101. Mortg. Application Techs., LLC v. Meridianlink, Inc., No. 19-CV-704, 2020 WL 1000581 (C.D. Cal. Jan. 6, 2020). MeridianLink, Inc. (“MeridianLink”) cross-appeals from a separate decision that denied MeridianLink’s motion for attorney’s fees. Mortg. Application Techs., LLC v. Meridianlink, Inc., No. 19-CV704, 2020 WL 4187766 (C.D. Cal. Mar. 12, 2020). For the reasons set forth below, we affirm the district court’s decision finding the ’902 patent invalid and affirm the denial of MeridianLink’s motion for attorney’s fees.

Of attorney's fees:

We now turn to MeridianLink’s cross-appeal on the denial of attorney’s fees. Under 35 U.S.C. § 285 “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” “[A]n ‘exceptional’ case is one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 134 S. Ct. 1749, 1756, 188 L. Ed. 2d 816 (2014). “District courts may determine whether a case is ‘exceptional’ in a case-by-case exercise of their discretion, considering the totality of the circumstances.” Id. Section 285 “imposes no specific evidentiary burden” and is rather “a simple discretionary inquiry[.]” We review the district court’s exceptional case determination for abuse of discretion. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 564, 134 S. Ct. 1744, 1749, 188 L. Ed. 2d 829 (2014). Because the district court did not abuse its discretion, we affirm.


MeridianLink further argues that the district court underestimated the weakness of MAT’s litigation position in light of the relevant caselaw, and that this case is exceptional because it “was not a close call under Alice.” CrossAppellant Br. 64. The district court, however, reviewed the relevant case law and found that MAT’s litigation position was not substantively weak. Although the ’902 patent is ineligible under § 101, it was unlike a number of other cases that MeridianLink cites in which the patents at issue were drawn to a fundamental economic processes. Specifically, as the district court stated, the claims in this case are drawn to an abstract process that is applied to a fundamental economic process. Mortg. Application, 2020 WL 4187766, at *3. MeridianLink argues that although the district court distinguished this case from a number of precedential cases, it did not distinguish this case from a few other cases MeridianLink cites. We are not persuaded that the handful of cases finding patent ineligibility under § 101, including Audatex, is sufficient to show that the district court abused its discretion in ultimately denying MeridianLink’s motion for attorney’s fees

Monday, January 11, 2021

The CAFC reviews taxable costs under section 1920 in view of CA3 law

The outcome in Parallel Networks v. Microsoft at the CAFC:

Parallel Networks Licensing, LLC, appeals a United States District Court for the District of Delaware order awarding costs under 28 U.S.C. § 1920 to Microsoft Corporation for depositions, documents, and trial exhibits. J.A. 1–3. For the following reasons, we affirm-in-part, vacate-in-part, and remand.
The issue:

The district court granted costs in the amount of $182,684.68, only denying the trial transcript costs. Parallel Networks appeals, disputing $153,775.10 of the $182,684.68 award. Microsoft seeks affirmance of $141,488.28 of the $182,684.68 award: the full award for deposition transcripts and for trial exhibits, and $31,358.78 of the $72,555.18 award for document production. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
(...) Section 1920 permits the recovery of “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” The district court’s analysis addressed “deposition transcripts and deposition recordings” but then ordered the taxation of “the deposition costs.” Microsoft argues that because the depositions themselves were necessary, it should be entitled to all of the challenged costs, even costs which can be fairly characterized as convenience, not necessary, costs such as realtime transcription or early transcripts. And it is entirely unclear what the fees delineated as laptop fees and litigation package fees even are much less whether they were necessary for the printed or recorded transcript of any deposition. It is not enough that the depositions themselves were “necessary,” § 1920(2) allows only for “[f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case.” We thus vacate and remand for the district court to consider whether these fees are the type that the Third Circuit would agree constitute fees for printed or electronically recorded transcripts or whether such convenience fees are beyond the scope of taxable costs.
Trial exhibit copies and their associated folders and labels are taxable costs. See § 1920(4); see also, e.g., In re Ricoh Co., Ltd. Patent Litig., 661 F.3d 1361, 1368 n.3 (Fed. Cir. 2011) (it would not be an abuse of discretion to award costs for tabs and folders if “related to categories of documents as to which the recovery of reproduction costs under section 1920(4) is appropriate”). Given that these types of costs are taxable under § 1920(4), we review the district court’s award of these costs for abuse of discretion. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 167–68 (3d Cir. 2012). Contrary to Parallel Networks’ argument, there is no statutory requirement that copies be admitted at trial in order to recover costs for those copies. See § 1920(4); see also In re Ricoh, 661 F.3d at 1367 (applying Ninth Circuit law) (section 1920(4) “does not require . . . that the copies actually be used in the case or made part of the record.”). Because the invoice attached to the Golden Declaration seems to be reasonably consistent with a commercial exhibit printing order, the district court acted within its discretion in taxing these costs in what it deemed to be a complex patent litigation

Thursday, December 31, 2020

Simio loses at CAFC

Of note:

We also affirm the district court’s denial of leave for a different reason: Simio failed to show good cause for seeking leave to amend only after the scheduling order’s deadline. Although the district court did not reach this issue

we may affirm on “any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029–30 (10th Cir. 1996) (quoting United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)) (affirming denial of motion to amend complaint because, among other things, plaintiff failed to provide an adequate explanation for its delay in seeking amendment); see Johnson, 950 F.3d at 720 (“Although the district court justified its denial of leave to amend on other bases, we may affirm on any ground supported by the record . . . .”). Here, the record supports concluding that Simio failed to show good cause for its requested post-deadline amendment. In the Tenth Circuit, parties seeking leave to amend after a scheduling-order deadline must demonstrate good cause under Rule 16(b)(4).8 Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014); see Fed. R. Civ. P. 16(b)(4) (providing that a scheduling order “may be modified only for good cause and with the judge’s consent”).

CAFC reverses WD Washington in Loops case and gives a bit of a lecture on procedure

The CAFC reversed the district court:

Loops, LLC and Loops Flexbrush, LLC (collectively, Loops) appeal a decision of the United States District Court for the Western District of Washington sua sponte granting summary judgment of noninfringement in favor of Maxill, Inc., both the Ohio and Canadian corporations (collectively, Maxill), and subsequently denying Loops’s request for reconsideration of that decision. In granting summary judgment, the district court determined that the accused toothbrush’s elongated body was not “flexible throughout,” as required by the claims. Because the court’s noninfringement ruling was based on an incorrect understanding of the “flexible throughout” claim limitation, we reverse.
Because the district court incorrectly viewed the flexibility limitation as directed to the combination of the elongated body and head, rather than the accused product’s elongated body alone, the district court erred in determining that the accused product lacks an elongated body that is flexible throughout.

of note here
Generally, a district court may not sua sponte grant summary judgment unless the losing party had “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f). The Ninth Circuit has held that sua sponte summary judgment may be granted as long as the losing party has had a “full and fair opportunity to ventilate the issues involved in the motion.” United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989) (internal quotation marks omitted); see also In re Harris Pine Mills, 44 F.3d 1413, 1439–40 (9th Cir. 1995) (entering summary judgment for the non-movant). Loops did not have a full and fair opportunity to argue and present its case against summary judgment of noninfringement. Because Maxill first requested that the court sua sponte grant summary judgment in its favor in its opposition to Loops’s motion, Loops was limited by both time and page length with respect to its response. After receiving Maxill’s opposition, Loops had just three days to respond and twelve pages. W.D. Wash. Local R. 7. Had Maxill filed its own summary judgment motion, Loops would have had about three weeks to respond and twentyfour pages. Id. Further, the local rules provide that motions requesting permission to file overlength briefs are due “no later than three days before the underlying motion or brief is due.” Id. Therefore, even if Loops had wanted to file a request for an overlength brief, it would not have had time.
And although the district court indicated that it would give full consideration to any reconsideration request, the court refused to consider any additional evidence and quickly dismissed Loops’s reconsideration motion as “merely rehashing” its prior arguments. Under the circumstances, we conclude, Loops did not have a full and fair opportunity to respond to Maxill prior to the district court’s sua sponte grant of summary judgment.